Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 2010 Abstention: The nexU pected Power of Withholding Your Vote Grant M. Hayden Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Grant M. Hayden, Abstention: The Unexpected Power of Withholding Your Vote, 43 Conn. L. Rev. 585 (2010) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/560 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. CONNECTICUT LAW REVIEW VOLUME 43 DECEMBER 2010 NUMBER 2 Article Abstention: The Unexpected Power of Withholding Your Vote GRANT M. HAYDEN This Article examines the effect of abstentions on the outcome of votes. Scholars (and voters) operate under two basic assumptions about the nature of abstention. First, they assume that an abstention affects all alternativesin equal measure. Second, and relatedly,people assume that a voter's preferredalternative will be less likely to win if that voter abstains (and, of course, more likely to win if she votes). Removing the potential full support of a vote and replacing it with the fifty-fifty proposition of an abstention should hurt the chances of a voter's preferred alternative. These two assumptions guide the thinking on abstentions at all levels of democratic decision-making, and have been incorporatedinto everything from voting procedures themselves to conflict of interest rules. The thesis of this Article is that these fundamental assumptions about abstention are often false. Initially, there are many potential situations, which fall under a phenomenon known as the "No-Show Paradox," where voters help their favored alternative by withholding their vote. More importantly, there are many situations in which abstention does not express something like fifty-fifty indifference with respect to outcome. Instead, under many voting procedures in a wide range of democratic institutions, abstention places a thumb on the scale for (or against) one of the alternatives. Together, these findings challenge our basic assumptions about abstention and undercut the justification for many of the voting procedures in our most sigificant democratic institutions,from Congress to courts and corporationsto unions. 585 ARTICLE CONTENTS I. INTRODUCTION ..................................... 587 II. BACKGROUND .................................................588 A. ABSTENTION DEFINED ............................... ..... 588 B. WHY Do PEOPLE ABSTAIN? . ... .. .. .. 589 III. THE POWER OF ABSTENTION . ........................................ 596 A. THE No-SHOW PARADOX ......................... 596 B. WHEN ABSTENTION FAILS To ExPREss INDIFFERENCE......................603 IV. CONCLUSION ................................ ...... 615 Abstention: The Unexpected Power of Withholding Your Vote GRANT M. HAYDEN. I. INTRODUCTION Democratic institutions make their most significant decisions by voting on them. The public elects representatives at the federal, state, and local level, who, in turn, use voting procedures to pass laws and ordinances. People participate more directly in the lawmaking process through votes on initiative, referendum, or recall votes. Higher courts (and some lower ones) with multiple judges typically resolve their cases through votes. Stockholders elect corporate board members, who then vote on firm decisions. Employees decide whether they want union representation by voting on it, and then do the same to elect union officers, approve contracts, and authorize strikes. Countless numbers of other organizations-from charities to universities to private clubs-employ voting procedures to make their most important decisions. Most of these democratic institutions, however, also allow people to abstain-to withhold their vote. In some cases, people abstain when they are indifferent among the electoral choices, or when they judge the benefits of voting to be outweighed by the costs. In other cases-when, for example, a potential voter has a conflict of interest-an institution may actually compel one of its members to abstain as a kind of "forced" indifference on the matter. The underlying assumption in both of these cases is that abstention, unlike voting, is neutral with respect to the outcome. But while the contours of the right to vote have been the subject of a tremendous amount of scholarship across many disciplines, abstention, despite its obvious connection to the right to vote, has been almost completely ignored. Instead, most scholars-and voters-make a couple of basic assumptions about the nature and effect of abstention. First, they assume that an abstention affects all alternatives in equal measure. If, for example, a legislature is voting on a proposition, it is widely thought that an abstention always has the effect of distributing the abstaining member's * Professor, Hofstra Law School. B.A., M.A., University of Kansas; J.D., Stanford Law School. The author would like to thank Sreejith Das for inspiring this Article and for his invaluable help in working out some of the details. Thanks as well to James Sample, Eric Lane, and comrnenters at a faculty workshop at Hofstra Law School. 588 CONNECTICUT LAW REVIEW [Vol. 43:585 voting power fifty-fifty for and against passage. This, of course, is consistent with the view that, all things being equal, abstentions are neutral with respect to outcome. Second, and related, people assume that a voter's preferred alternative will be less likely to win if that voter abstains and, of course, more likely to win if she votes. Removing the potential full support of a vote and replacing it with the fifty-fifty proposition of an abstention should hurt the chances of a voter's preferred alternative. These two assumptions guide the thinking on abstentions at all levels of democratic decision-making, and have been incorporated into everything from the voting procedures themselves to conflict of interest rules. The thesis of this Article is that these fundamental assumptions about abstention are false. The first part of the Article defines abstention and fleshes out some of the scholarly work on what motivates the decision to abstain in both large elections and smaller parliamentary bodies. The second part of the Article makes use of rational choice and voting power theory to demonstrate that the basic assumptions about abstention are misguided. Initially, there are many potential situations, which fall under what's known as the "No-Show Paradox," where voters help their favored alternative by withholding their vote. More important, there are many situations in which abstention does not express something like fifty-fifty indifference with respect to outcome. Instead, under many voting procedures in a wide range of democratic institutions, abstention places a thumb on the scale for (or against) one of the alternatives. Together, these findings both challenge our basic assumptions about abstention and undercut the justification for many of the voting procedures in our most significant democratic institutions. II. BACKGROUND A. Abstention Defined Abstention is a term in election procedure for when an eligible voter refrains from voting. It may occur in the context of a public vote designed to select among candidates for political office, or to pass judgment on an official proposition. In such cases, abstention usually describes what occurs when a voter does not go to the polls on election day.' Abstention 'Abstentions in larger public elections may also include voters who show up at the polls and fail to cast a vote for one of the alternatives on the ballot. This may occur when one casts an incomplete ballot, which most frequently occurs with elections for offices further down the ballot in a process called "roll-off." See Peter Brien, Voter Pamphlets: The Next Best Step in Election Reform, 28 J. LEGis. 87, 107-10 (2002) (discussing possible causes of, and remedies for, voter roll-off); R. Darcy & Anne Schneider, Confusing Ballots, Roll-Off and the Black Vote, 42 W. POL. Q. 347, 348 (1989) ('Roll-off measures the tendency of the electorate to vote for 'prestige' offices but not for lower offices on the same ballot and at the same election."). It may also occur as an act of protest. See infra notes 29-33 and accompanying text. 2010] THE UNEXPECTED POWER OF WITHHOLDING YOUR VOTE 589 may also occur in the context of a smaller decision-making body such as a legislature, court, board, or law school faculty. In these cases, abstention is often a more affirmative act, describing what happens when a member shows up, and thus counts for the purposes of achieving a quorum, but then refuses to cast a ballot or, under some procedures, votes "present" or "abstention" (refusing to vote "yes" or "no").2 Of course, abstention may also occur in legislatures when a member fails to show up, thus failing to count for purposes of a quorum as well. But whether the vote is a large public election or a small decision-making body, abstention simply describes the failure to vote for one of the alternatives. B. Why Do People Abstain? So why, exactly, do eligible voters abstain? Several of the primary theoretical tools for analyzing voting systems pay little attention to this